Rishil Thomas v. Mini U.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR ``` ``` MONDAY, THE 26[TH] DAY OF JUNE 2023 / 5TH ASHADHA, 1945 ``` ``` F.A.O.NO.82 OF 2021 ``` ``` AGAINST THE ORDER DATED 22.02.2021 IN I.A.NO.1 OF 2020 IN O.S.NO.232 OF 2017 OF THE ADDITIONAL SUB COURT - I, ``` ## **`ERNAKULAM`** ## **`APPELLANT/PETITIONER/DEFENDANT:`** ``` RISHIL THOMAS, AGED 40 YEARS, S/O. T. M. THOMAS, THANNOKKOTT HOUSE, KANJOOR P. O., KALADY, ERNAKULAM DISTRICT, PIN - 683111. ``` ``` BY ADVS. C.P.PEETHAMBARAN M.X.ANTONY LIJO K.S.SHAIJU ``` ## **`RESPONDENT/RESPONDENT/PLAINTIFF:`** ``` MINI U., AGED 48 YEARS, D/O. P. K. BHASKARAN NAIR, FLAT NO.6, MANJOORAN'S BLUE CASTLE, NIVYA ROAD, LFC ROAD, KALOOR, KOCHI, PIN - 682017. ``` ``` BY ADVS. K.R.VINOD M.S.LETHA ``` ``` THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 26.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 F.A.O.No.82 of 2021 ## **JUDGMENT** ## **Anil K. Narendran, J.** The appellant is the defendant in O.S.No.232 of 2017 on the file of the Additional Sub Court-I, Ernakulam, a suit filed by the respondent herein-plaintiff for recovery of an amount of Rs.62,00,000/-. In the suit, the defendant was set _ex parte_ on 10.12.2019 and an _ex parte_ decree was also passed on 30.01.2020. Seeking an order to set aside the _ex parte_ decree, the defendant filed I.A.No.1 of 2020, an application under Order IX Rule 13 of the Code of Civil Procedure, 1908. That application ended in dismissal by the order dated 22.02.2021, which is under challenge in this appeal filed invoking the provisions under Order XLIII Rule 1(d) of the Code of Civil Procedure, 1908. 2. On 06.12.2021, when this appeal came up for admission, this Court admitted the matter on file and issued urgent notice by speed post to the respondent, returnable within three weeks. 3. Heard the learned counsel for the appellant-defendant and also the learned counsel for the respondent-plaintiff. 4. The learned counsel for the appellant would contend 3 F.A.O.No.82 of 2021 that when the application, i.e., I.A.No.1 of 2020 filed by the appellant to set aside the _ex parte_ decree dated 30.01.2020 in O.S.No.232 of 2017, invoking the provisions under Order IX, Rule 13 of the Code of Civil Procedure, 1908, was one filed within the period of limitation, the Court below ought to have allowed that interlocutory application. 5. On the other hand, the learned counsel for the respondent-plaintiff would point out the conduct of the appellantdefendant during the trial, as stated in paragraph 6 of the impugned order. Therefore, the court below cannot be found fault with in rejecting the application to set aside the _ex parte_ decree, which was one filed within the period of limitation. 6. The reasoning of the court below in paragraph 6 of the order, reads thus; “6. Point No.1:- Having heard both sides, I have verified the proceedings paper to get a clear picture as to the merits of the contentions advanced by both sides. On 15.03.2019, this court directed the defendant to appear on 03.04.2019 to give his specimen signature. On 03.04.2019 the defendant remained absent and his counsel sought time for appearance to give the specimen signature and thumb impression. As such the case was posted on 20.06.2019. Thereafter, for 3 postings successively, there was no sitting 4 F.A.O.No.82 of 2021 of the court. On 29.07.2019, the court directed the defendant to appear on 19.08.2019 to give the specimen signature. On 19.08.2019, the defendant again remained absent and as such the case was posted 24.08.2019. On 24.08.2019 there was no sitting and the case was adjourned to 18.09.2019 by notification. On 18.09.2019, since the defendant was absent the case was posted 26.10.2019 with the same direction. On 26.10.2019 also the defendant remained absent and there was no representation for him. On that date, the court gave a specific direction to appear on 18.11.2019 showing that in the event of failure, he will be set ex parte. On 18.11.2019, there was no sitting and the case was adjourned by notification to 10.12.2019. On 10.12.2019 as the defendant remained absent and there was no representation, he was set ex parte. Then the case was posted to 28.01.2020 for payment of the balance court fee. On 28.01.2020 the case was adjourned to 29.01.2020 for ex parte evidence. On 29.01.2020 the evidence was recorded and on 30.01.2020 the suit was decreed. From the above, it can be seen that the defendant/petitioner has conveniently suppressed the failure on his part to appear before the court to give his specimen signature and thumb impression on various posting dates prior to the date on which he was set ex parte. He who disobeyed the directions of the court and willfully evaded the opportunities given cannot conveniently take shelter under an alleged mistake committed by a lawyer in noting the posting dates. Absolutely no valid explanation is offered by him for his previous absence. In fact, his absence on the date on which 5 ## F.A.O.No.82 of 2021 he was set ex parte was a continuation of his previous defiant attitude towards the directions of the court. In the said circumstance, allowing his prayer for setting aside the decree would be nothing but an abuse of the process of the court and the same cannot be entertained. Hence the point is found against the petitioner” 7. Order IX, Rule 13 of the Code provides for setting aside decree _ex parte_ against defendant. As per sub-rule (1) of Rule 13, in any case in which a decree is passed _ex parte_ against a defendant, he may apply to the court which the decree was passed for an order to set it aside; and if he satisfies the court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. As per the first proviso to sub-rule (1), where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also. As per the second proviso to sub-rule (1), no court shall set aside a decree passed _ex parte_ merely on the ground that there has been an irregularity in the 6 ## F.A.O.No.82 of 2021 service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim. As per the Explanation, where there has been an appeal against a decree passed _ex parte_ under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that _ex parte_ decree. 8. In **G.P. Srivastava v. R.K. Raizada [(2000) 3 SCC** **54]** in the context of an application filed under Order IX, Rule 13 of the Code, for setting aside an _ex parte_ decree, the Apex Court held that, the word ‘was prevented by any sufficient cause from appearing’ occurring in Order IX, Rule 13 of the Code must be liberally construed to enable the court to do complete justice between the parties, particularly when no negligence or inaction is imputable to the erring party. Sufficient cause for the purpose of Order IX, Rule 13 of the Code has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The courts have wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. 7 ## F.A.O.No.82 of 2021 9. In **G.P. Srivastava** , the Apex Court held further that, ‘sufficient cause’ for non-appearance refers to the date on which the absence was made a ground for proceeding _ex parte_ and cannot be stretched to rely upon other circumstances anterior in time. If ‘sufficient cause’ is made out for non-appearance of the defendant on the date fixed for hearing when _ex parte_ proceedings initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier. In a case where defendant approaches the court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not mala fide or intentional. For the absence of a party in the case the other side can be compensated by adequate costs and the _lis_ decided on merits. ## 10. In **Peeves Enterprises v. Muhammed Ashraf** **[2015 (3) KHC 981]** , relying on the law laid down by the Apex Court in **G.P. Srivastava** , a Division Bench of this Court held that, on an application filed under Order IX, Rule 13 of the Code of Civil Procedure, the court has to find out whether the erring party has made out sufficient cause for setting aside the _ex parte_ decree. 8 F.A.O.No.82 of 2021 When no negligence or inaction is imputable to the erring party and the absence was not mala fide or intentional, the discretion has to be exercised in his favour, especially when the application is within the statutory time limit. In appropriate cases, the plaintiff can be compensated by adequate costs for the loss of time and the inconvenience caused to him. But any such condition shall not be too onerous. 11. The principle laid down in **Peeves Enterprises [2015** **(3) KHC 981]** was reiterated in **Shivananda M. v. M. Susheela [2021 (5) KHC 357]** . It was held that ‘sufficient cause’ for nonappearance refers to the date on which the absence was made a ground for proceeding _ex parte_ and cannot be stretched to rely upon other circumstances anterior in time. If ‘sufficient cause’ is made out for the non-appearance of the defendant on the date fixed for hearing when _ex parte_ proceedings were initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier. In a case where a defendant approaches the Court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not mala fide or intentional. For 9 ## F.A.O.No.82 of 2021 the absence of a party in the case the other side can be compensated by adequate costs and the _lis_ decided on merits. 12. The case of the appellant-defendant is that on 10.12.2019 the counsel for the defendant entrusted the case to another counsel by the name Ved Raj, who could not appear before the court below due to traffic block. The said counsel mistakenly noted the posting date as 28.02.2020, instead of 28.01.2020. In the affidavit filed in support of I.A.No.1 of 2020, the defendant has offered explanation for his absence in court on the posting dates for giving specimen signature and thumb impression. Having considered the facts and circumstances of the case, in the light of the law laid down in the decisions referred to supra, we find that the absence of the appellant-defendant on 28.01.2020 cannot be said to be mala fide or intentional. Taking note of the absence of the defendant on previous occasions, we find that interference on the impugned order can be made only on payment of costs to the respondent-plaintiff. 13. In the result, this appeal is allowed and the impugned order dated 22.02.2021 of the Additional Sub Court-I, Ernakulam in I.A.No.1 of 2020 in O.S.No.232 of 2017 is set aside on payment 10 ## F.A.O.No.82 of 2021 of a cost of Rs.10,000/- (Rupees Ten thousand only) by the appellant-defendant to the respondent-plaintiff, within two weeks from the date of receipt of a certified copy of this judgment. On such payment being made, the impugned order dated 22.02.2021 of the Additional Sub Court-I, Ernakulam in I.A.No.1 of 2020 in O.S.No.232 of 2017 will stand set aside and consequently, the _ex parte_ decree passed in O.S.No.232 of 2017 will stand set aside. Thereafter, the Sub Court shall proceed with that suit and dispose of the same, as expeditiously as possible. Both parties shall appear before the Additional Sub Court-I, Ernakulam on **10.07.2023.** **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** MIN